Memorandum In Support Of Motion To Quash Subpoena Issued To Silicon Investor/InfoSpace, Inc.

EFF handled this leading case with the ACLU of Washington State. In it, a federal district court in the Eastern District of Washington held that the identities of 23 participants in an Infospace chatroom were protected from disclosure. The case contained a strong endorsement of the right to anonymous speech online and set out a rigorous test for releasing the identities of John Does who were witnesses, rather than defendants. The test asks:

-Was the subpoena brought in good faith?

-Does the information relate to a core claim or defense?

-Is the identifying information directly and materially relevant to that claim or defense?

-Is the information available from other sources?

Please see full Memorandum In Support Of Motion To Quash below for more information.

UNITED STATES DISTRICT COURTWESTERN DISTRICT OF WASHINGTONAT SEATTLEIn re 2TheMart.com, Inc. SecuritiesLitigationCase No: Misc.Pending in C.D. CaliforniaSACV-99-01127 DOC (AMx)MEMORANDUM IN SUPPORTOF MOTION OF J. DOE TOQUASH SUBPOENA ISSUED TOSILICONINVESTOR/INFOSPACE, INC.Movant John/Jane Doe (hereinafter "Doe") used an internet bulletin board to post messages underthe pseudonym "NoGuano." In this action, defendant 2TheMart.com, Inc. served a third party subpoena toInfoSpace Inc., the operator of the bulletin board, demanding that it disclose Doe's true identity. Doe asksthis Court to quash the subpoena as it relates to Doe and the other anonymous speakers named in thesubpoena ("the Does"), because it violates their First Amendment right to speak anonymously.1 INTRODUCTION 72 STATEMENT OF FACTS 113 BACKGROUND REGARDING INTERNET BULLETIN BOARDS 114 THE SUBPOENA TO INFOSPACE 185 SUMMARY OF ARGUMENT 246 ARGUMENT 277 THE COURT SHOULD QUASH THE SUBPOENA TO INFOSPACE BECAUSEIDENTIFYING THE DOES WOULD DESTROY THEIR RIGHT TO SPEAKANONYMOUSLY 278 The First Amendment Protects the Right to Speak Anonymously 289 Enforcing this Subpoena Would Violate Defendant's Substantive ConstitutionalRights 3410 THE COURT SHOULD APPLY A BALANCING TEST TO DETERMINE WHETHERTMRT'S NEED FOR DOE'S IDENTITY OUTWEIGHS DOE'S FIRSTAMENDMENT RIGHT TO SPEAK ANONYMOUSLY 3911 CONCLUSION 551 INTRODUCTIONThe underlying litigation is a class action securities fraud case currently pending in US District Courtfor the Central District of California. The defendant corporation, 2TheMart.com, Inc. (hereinafter known byits ticker symbol "TMRT"), issued a subpoena seeking to have online service provider InfoSpace Inc. revealthe identities of twenty-three speakers who participated pseudonymously on Internet message boardsoperated by InfoSpace. See Exhibit A. The subpoena does not on its face explain why the identities of thesespeakers are relevant to the underlying dispute. Indeed, the nature of the suit makes their relevance unlikely.Under these circumstances, enforcement of a "fishing expedition" subpoena would terminate the speakers'First Amendment right to engage in anonymous speech without creating any corresponding benefit.Accordingly, this Court should quash the subpoena.1The syndrome of third party civil subpoenas issued to Internet service providers seeking to breachthe anonymity of their users is growing increasingly frequent. 2 It has rarely been subjected to judicialscrutiny, however, partly because of the short time frames typically involved in bringing a motion to quashand partly because many internet service providers do not notify their users before sacrificing theiranonymity. This motion presents a good opportunity for the court to clarify that the test used in othersettings where the First Amendment protects information against forced disclosure should also be used toevaluate third party subpoenas. The choice to speak anonymously should not be invalidated by judicialprocess unless it is clearly shown that specifically identified information about an anonymous poster iscentral to the claims of the party seeking the information, that those claims are viable, and that the party canacquire the information in no other manner.2 STATEMENT OF FACTS3 BACKGROUND REGARDING INTERNET BULLETINBOARDSThe Internet is a democratic institution in the fullest sense. It serves as the modern equivalent ofSpeakers' Corner in England's Hyde Park, where ordinary people may voice their opinions, however silly,profane, or brilliant they may be to all who choose to read them. As the Supreme Court opined in Reno v.ACLU, 521 U.S. 844, 870 (1997), "[f]rom the publisher's point of view, [the Internet] constitutes a vastplatform from which to address and hear from a worldwide audience of millions of readers, viewers,researchers, and buyers. . . . Through the use of chat rooms, any person with a phone line can become atown crier with a voice that resonates farther than it could from any soapbox. Through the use of Webpages, . . . the same individual can become a pamphleteer." The government's ability to impinge upon speechis stringently limited on the Internet, just as it would be in a traditional public forum. Id.To allow these town criers and pamphleteers to find each other, InfoSpace created a website called"Silicon Investor" that, in part, contains a series of electronic bulletin boards for the expression of useropinions around the central topic of investment in publicly-traded securities. The Silicon Investor web site,see www.siliconinvestor.com , features a series of message boards for various publicly-traded companies,and it permits anyone to post messages to these boards. While nothing prevents individuals from using theirreal names, most individuals who post messages on these boards generally do so under pseudonyms –similar to the old system of truck drivers using "handles" when speaking on their CB radios. Choosing oneof these colorful monikers protects the speaker's identity, and such privacy generally encourages theuninhibited exchange of ideas and opinions. Silicon Investor has a privacy policy that states in part,"Individually identifiable information will not be released without that individual's prior consent."http://www.siliconinvestor.com/misc/privacy.gsp. Indeed, Silicon Investor will revoke service to anyonewho uses its message boards to invade another’s privacy. Seehttp://www.go2net.com/corporate/legal/terms.html (terms of service).An important aspect of message boards that distinguishes them from almost any other form ofpublished expression is that a person who disagrees with statements on a message board can respond tothem immediately at little or no cost, and that response will have the same prominence as the offendingmessage. A message board is thus unlike a newspaper, which cannot be required to print a response to itscriticisms. Miami Herald Publ'g. Co. v. Tornilllo, 418 U.S. 241 (1974). Corporations and individuals canreply immediately to criticisms on a message board, providing facts or opinions to vindicate their positions,and thus, potentially, persuading the audience that they are right and their critics wrong. Because manypeople regularly revisit the same message boards, the response is likely to be seen by much the sameaudience as the original criticism. In this way, the Internet provides the ideal proving ground for theproposition that the marketplace of ideas, rather than the courtroom, provides the best forum for resolutionof disagreements about the truth of disputed propositions of fact and opinion.4 THE SUBPOENA TO INFOSPACEThe underlying litigation is a class action securities fraud case where plaintiffs claim they wereinjured in their purchases or sales of TMRT securities as a result of fraudulent statements the defendantscommunicated to the investing public. The case relies largely on the fraud-on-the-market theory, whichpresumes that the market price of an efficiently-traded security fluctuates based on the information availableto investors. See Basic, Inc. v. Levinson, 485 U.S. 224 (1988). As applied to Internet bulletin boards, thetheory posits that a stock's price might change to the extent that investors choose to heed the informationcontained in pseudonymously authored messages. Because a pseudonymous message does not identify itsauthor, the author's identity, if not otherwise known to investors from other sources, cannot affect stockprice.One of Silicon Investor's message boards pertains to TMRT. To date, almost 1500 messages havebeen posted on the TMRT board, covering an enormous variety of topics and posters. Investors andmembers of the public discuss the latest news about the company, what new businesses it may develop, thestrengths and weaknesses of the company's operations, and what its managers and employees might dobetter. The messages posted on the Silicon Investor web site are archived, so that any user—includingTMRT or its counsel—can read prior postings.On January 24, 2001, TMRT served a subpoena from this Court upon InfoSpace, demanding that itreveal identifying information about twenty-three Silicon Investor users who preferred to identifythemselves by pseudonyms like "The Truthseeker", "Edelweiss", and "NoGuano" (the latter used by Doe).See Exhibit A. Unlike some internet services who do not inform their users about subpoenas of this sort,InfoSpace notified the Does by e-mail of the subpoena and gave them time to file a motion to quash.Prior to and during the time period covered by the TMRT securities litigation, Doe was a regularuser of the Silicon Investor web site and discussed various companies on its bulletin boards. Review of thepostings archived on the site shows that the user "NoGuano" has never posted on Silicon Investor's TMRTmessage board. Nonetheless, Doe's constitutionally protected choice to speak anonymously will besacrificed as part of TMRT's general fishing expedition if the subpoena is not quashed. The argumentsoutlined below would apply even if Doe had discussed TMRT on the Internet, perhaps even more forcefully.However, given that there is no known link between Doe and TMRT, the loss of First Amendmentprotection suffered in this case appears to have no countervailing benefit. Accordingly, Doe requests thisCourt quash the subpoena to the extent it calls for identification of all the Does, because its enforcementwould violate their rights under the First Amendment.5 SUMMARY OF ARGUMENTEstablished First Amendment doctrine should determine the legal standard for determining whether asubpoena for the identity of a non-party Internet speaker violates the right to speak anonymously. ThisCourt should make clear that the First Amendment rights of individuals like Doe are protected fromdiscovery fishing expeditions in the absence of a genuine need that outweighs the constitutionally protectedinterest. As a court in this Circuit recently observed, "[p]eople who have committed no wrong should beable to participate online without fear that someone who wishes to harass or embarrass them can file afrivolous lawsuit and thereby gain the power of the court's order to discover their identities." Columbia Ins.Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (discussing the standards for discovery of adefendants' identity in a domain name/trademark dispute). While this particular instance of third partyInternet subpoenas in a securities fraud case is new, there is ample precedent for a court to reject the use ofcivil discovery tools where the disclosure of information would infringe another party's First Amendmentinterests. In these cases, courts balance the harm to the speaker against the party's proven need for therequested discovery.6 ARGUMENT7 THE COURT SHOULD QUASH THE SUBPOENA TOINFOSPACE BECAUSE IDENTIFYING THE DOES WOULDDESTROY THEIR RIGHT TO SPEAK ANONYMOUSLYPetitioner seeks to use the subpoena power of this court to identify 3 an Internet speaker. This type ofdiscovery directly destroys Doe's constitutional right to speak anonymously.8 The First Amendment Protects the Right to Speak AnonymouslyThe Supreme Court has repeatedly upheld the First Amendment right to speak anonymously.Buckley v. American Constitutional Law Found. 119 S. Ct. 636, 645-646 (1999); McIntyre v. Ohio ElectionsComm., 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). These cases celebrate the importantrole played by anonymous or pseudonymous writings through history, from the literary efforts ofShakespeare and Mark Twain through the explicitly political advocacy of the Federalist Papers. As theSupreme Court said in McIntyre:[A]n author is generally free to decide whether or not to disclose his or her trueidentity. The decision in favor of anonymity may be motivated by fear of economic orofficial retaliation, by concern about social ostracism, or merely by a desire topreserve as much of one's privacy as possible. Whatever the motivation may be, . . .the interest in having anonymous works enter the marketplace of ideas unquestionablyoutweighs any public interest in requiring disclosure as a condition of entry.Accordingly, an author's decision to remain anonymous, like other decisionsconcerning omissions or additions to the content of a publication, is an aspect of thefreedom of speech protected by the First Amendment.McIntyre, 514 U.S. at 341-342 (emphasis added).Reno v. ACLU firmly established that Internet speech is fully protected under the First Amendment.Other cases have upheld the right to communicate anonymously over the Internet. E.g., ACLU v. Johnson, 4F.Supp.2d 1029, 1033 (D.N.M. 1998), aff'd, 194 F.3d 1149 (10th Cir. 1999) (upholding preliminaryinjunction against New Mexico statute prohibiting dissemination of material "harmful to minors" on theInternet); ACLU v. Miller, 977 F. Supp. 1228, 1230 (N.D. Ga. 1997) (granting preliminary injunction whereparties likely to prove that Georgia criminal statute imposed unconstitutional content-based restrictions ontheir right to communicate anonymously and pseudonymously over the Internet).At the same time that the Internet gives individuals the opportunity to speak anonymously, it createsan unparalleled capacity to monitor every speaker and discover his or her identity. The technology of theInternet is such that sending an e mail or visiting a website leaves behind an electronic footprint that can, ifsaved, provide the beginning of a path that can be followed back to the original sender. See Lessig, The Lawof the Horse, 113 Harv. L. Rev. 501, 504-505 (1999). Thus, anybody with enough time, resources andinterest, if coupled with the power of the Courts to compel disclosure of information, can snoop oncommunications to learn who is saying what to whom. As a result, the law should provide specialprotections for anonymity on the Internet. E.g., Post, Pooling Intellectual Capital: Thoughts of Anonymity,Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi. Legal F. 139.9 Enforcing this Subpoena Would Violate Defendant's Substantive ConstitutionalRightsTMRT asks this Court to enforce a subpoena to obtain Doe's identity, terminating once and for allDoe's right to speak anonymously. A court order, even when issued at the behest of a private party,constitutes state action subject to constitutional limitations, including the First Amendment. New YorkTimes Co. v. Sullivan, 364 U.S. 254, 265 (1964); Shelley v. Kraemer, 334 U.S. 1 (1948). A court order tocompel production of individuals' identities in a situation that would threaten the exercise of fundamentalrights "is subject to the closest scrutiny." NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461 (1958).See also Bates v City of Little Rock, 361 U.S. 516, 524 (1960). Abridgment of the rights to speech and press,"even though unintended, may inevitably follow from varied forms of governmental action," such ascompelling the production of names. NAACP v. Alabama, 357 U.S. at 461.Due process requires the showing of a compelling interest where, as here, disclosure threatens toimpair fundamental rights. Bates, 361 U.S. at 524; NAACP v. Alabama, 357 U.S. at 463. See also In reGrand Jury Subpoena: Subpoena Duces Tecum v. John Doe 819, 829 F.2d 1291 (4th Cir. 1987) (court muststrictly scrutinize subpoena that threatens to chill the exercise of First Amendment rights). The subpoenadoes not indicate on its face what compelling interest TMRT has in learning Doe's identity. The structure ofthe underlying litigation, however, suggests that there is no such interest. Fraud-on-the-market cases hingeon the defendants' knowledge, statements, and omissions as compared to publicly available information—which at all relevant times did not include the identities of the Does. There is even less reason for discoveryas to Doe, given the absence of comments about TMRT from "NoGuano."Whatever test this Court uses to evaluate the subpoena, it is clear that some evidentiary showingmust be made by TMRT before there can be any order compelling production. See Columbia Insurance Co.v. Seescandy.com, 185 F.R.D. 573, 579 (N.D. Cal. 1999). Cf. Quad Graphics, Inc. v. Southern AdirondackLibrary System, 664 N.Y.S.2d 225, 228 (NY Sup. Ct., Saratoga County 1997) (release of identities will notbe compelled where doing so would breach protected interests and no criminal or civil charges have beenfiled).10 THE COURT SHOULD APPLY A BALANCING TEST TODETERMINE WHETHER TMRT'S NEED FOR DOE'SIDENTITY OUTWEIGHS DOE'S FIRST AMENDMENT RIGHTTO SPEAK ANONYMOUSLYBecause compelled identification of anonymous speakers trenches on their First Amendment right toremain anonymous, the First Amendment creates a qualified privilege against disclosure. Although there isno precedent directly on point dealing with third-party subpoenas in securities fraud cases, this Court mayrely on the rules in analogous situations where courts have rejected the use of civil discovery tools wherethe disclosure of information would be harmful to another party's First Amendment interests.For example, courts have a great deal of experience with third party journalists subpoenaed forconfidential information obtained in the course of reporting. Like a journalist, InfoSpace gathers otherwiseconfidential information during the normal scope of its activities. A journalist usually requires confidentialinformation from speakers, both source information and facts, in order to ensure proper verification of astory. Similarly, in its normal technical administration of the message boards, InfoSpace gathers identifyinginformation from those who use the message board. In both instances the information is gathered for aspecific purpose that is unrelated to the subsequent litigation where the information is sought.Furthermore, forcing the release of the information in both instances creates a chilling effect on thespeech not only of the persons whose identity is revealed, but on many other persons as well. The riskunderlying the journalists' privilege is that, faced with losing their anonymity, persons will refuse to talk tojournalists. The risk here is that, faced with losing their anonymity, people will no longer participate inpublic message boards. Thus, the risk in failing to protect anonymity in both cases is the same: a chill onFirst Amendment protected expression.To overcome the First Amendment privilege asserted by journalists when asked to revealconfidential information, the party seeking the discovery of the information must show "that the claimedFirst Amendment privilege and the opposing need for disclosure be judicially weighed in light of thesurrounding facts and a balance struck to determine where lies the paramount interest." Farr v. Pitchess,522 F.2d 464, 464 (9th Cir. 1975). Stated alternatively, the question is whether "the paramount interestserved by the unrestricted flow of public information protected by the First Amendment outweighs thesubordinate interest served by the liberal discovery provisions embodied in the Federal Rules of CivilProcedure." Loadholtz v. Fields, 389 F. Supp. 1299, 1300 (M.D. Fl. 1995).The test applicable to subpoenas issued to non-party journalists in civil cases is: (1) that theinformation is of certain relevance; (2) that there is a compelling reason for the disclosure; (3) that othermeans of obtaining the information have been exhausted; and (4) that the information sought goes to theheart of the seeker's case. Los Angeles Memorial Coliseum Commission, v. Nat'l Football League, et al, 89F.R.D. 489. (CD. Cal. 1981). See also Richards of Rockford v. PGE, 71 F.R.D. 388, 390-391 (N.D. Cal.1976); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972);United States v. Cuthbertson, 630 F.2d 139, 146 149 (3d Cir. 1980) (qualified privilege recognized undercommon law).In applying this privilege, the Ninth Circuit has recognized that "routine court-compelled disclosureof research materials poses a serious threat to the validity of the newsgathering process." Mark v. Shoen, 48F.3d 412, 415-416 (9th Cir. 1995). Similarly, as noted above, routine court-compelled disclosure ofidentities of persons participating in message boards could pose a serious threat to the ongoing viability ofthese public discussions. Thus, given the similar First Amendment interests at stake, Doe maintains that thesame public purpose served by the journalists' privilege will be served by applying this test to third partysubpoenas seeking identifying information about anonymous speakers on publicly available message boards.Courts have also limited the discovery of membership lists where a subpoena impermissibly burdensDefendants' constitutional right to freedom of association. The First Amendment protects individuals' rightto associate because, as the Supreme Court has explained, "[t]he effective advocacy of public and privatepoints of view, particularly controversial ones, is undeniably enhanced by group association." NAACP v.Alabama, 357 U.S. at 469. It is, moreover, "hardly a novel perception that compelled disclosure of affiliationwith groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association." Id.at 462. The same is true regarding compelled disclosure of groups' other internal or confidential records.Adolph Coors Co. v. Wallace, 570 F. Supp. 202, 204 (N.D. Cal. 1983) (documents reflecting group's"sources of financial support and the scope of its activities").In the seminal case of Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990) (decided onfederal constitutional grounds), the Washington Supreme Court enunciated a similar two-step procedure forevaluating discovery requests against assertions of First Amendment associational privilege that seemsespecially appropriate here. First, once the party opposing discovery shows "some probability" that adiscovery request "will harm its First Amendment rights," then the party seeking discovery must make arigorous demonstration regarding the importance of the requested information. Id. at 164. The requestermust "establish the relevancy and materiality of the information sought, and [] make a showing thatreasonable efforts to obtain the information by other means have been unsuccessful." Id. Second, if the partyseeking discovery makes this initial showing, then "the trial court must balance [that party's] need for theinformation against the [opposing party's] claim of privilege and determine which is strongest. If clearlynecessary, the trial court may make this [second] decision following an in camera inspection of therequested documents." Id. at 166 (original emphasis).Both of the tests described above are consistent with a test recently applied in this circuit in a casewhere the plaintiff was seeking to identify an anonymous defendant who had registered an Internet domainname so they could pursue a trademark action. Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D.Cal. 1999). The court required the plaintiff to make a good faith effort to communicate with the anonymousdefendants and provide them with notice that the suit had been filed against them, thus giving them anopportunity to defend their anonymity before the plaintiff could proceed with discovery against third partieswho could identify them. The court also compelled the plaintiff to demonstrate that it had viable claimsagainst the anonymous defendants. Id. at 579. Here, TMRT's subpoena does not seek the identity of apotential defendant, but instead, the identities of third parties who participated in Internet discussion aboutTMRT (or Doe's case, one who didn't). In addition, since the targets of the subpoenas are those who wereexercising their First Amendment rights to comment on matters of public concern, and since they weredoing so in the public forum of the Internet, the risk of a chilling effect from a less rigorous test is profound.To properly protect the rights of third parties to litigation, the court should apply a test that requires anevidentiary showing, such as that used in the journalist's privilege and membership lists contexts, whenconsidering subpoenas issued to online service providers seeking identifying information about theirsubscribers when those subscribers are not parties to the pending litigation. The party seeking informationshould produce evidence and not merely rely on the pleadings.11 CONCLUSIONBased upon the foregoing, Movant Doe respectfully requests that the motion to quash the subpoenabe granted.DATED this ___ day of _________________, 2001.ELECTRONIC FRONTIER FOUNDATION454 Shotwell StreetSan Francisco, CA 94110(415) 436-9333By: Cindy A. CohnLegal DirectorAMERICAN CIVIL LIBERTIES UNIONOF WASHINGTONBy: Aaron H. CaplanStaff AttorneyAttorneys for J. Doe FOOTNOTES1 If the subpoena is not quashed, the Court should, at a minimum, issue a protective order to limit access tothe identity information to only the attorneys for the parties.2 In Loudoun County, Virginia—the home of America Online, Inc.—70 of the 107 applications forsubpoenas filed with the circuit court in the first four months of 1999 were directed to AOL information.Serving warrants on AOL is “almost a full-time job” for the Sheriff’s process server. Stephen Dinan, SearchWarrants Keep AOL Busy, Wash. Times, April 27, 1999 at C4.3 The term "identity" here refers to more than simply Doe's name. The subpoena covers all identifyinginformation gathered by InfoSpace about its users, including address, credit card information, and so on.Since this information, singly or collectively can be easily used by Defendants to discover Doe's name, itshould be withheld as well. For the remainder of this brief, the term "identity" includes all identifyinginformation held by InfoSpace.MEMORANDUM IN SUPPORT OF J. DOE'S MOTION TO QUASH --58Please send any questions or comments to webmaster@eff.org.

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